88R400 JES-D
 
  By: Toth, Cortez, Wilson, Schaefer, et al. H.B. No. 264
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to requirements for the physical presence of a borrower
  for signing certain documents related to a home equity loan.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 343.002(b), Finance Code, is amended to
  read as follows:
         (b)  Except as provided by Subchapter D, this [This] chapter
  does not apply to:
               (1)  a reverse mortgage; or
               (2)  an open-end account, as defined by Section
  301.002.
         SECTION 2.  Chapter 343, Finance Code, is amended by adding
  Subchapter D to read as follows:
  SUBCHAPTER D. HOME EQUITY LOANS
         Sec. 343.301.  DEFINITION. In this subchapter, "home equity
  loan" means an extension of credit described by Section 50(a)(6),
  Article XVI, Texas Constitution.
         Sec. 343.302.  PHYSICAL PRESENCE OF CERTAIN BORROWERS AT
  CLOSING NOT REQUIRED. (a) This section applies to the closing of a
  home equity loan by a borrower who:
               (1)  is located outside of this state at the time of the
  closing and is:
                     (A)  a member of the armed forces of the United
  States who is on active duty;
                     (B)  an officer of the Commissioned Corps of the
  United States Public Health Service who is on active duty;
                     (C)  a member of reserve components of the armed
  forces of the United States not described by Paragraph (A) who is on
  active duty;
                     (D)  the spouse or surviving spouse of a person
  described by Paragraph (A), (B), or (C); or
                     (E)  a civilian employee of the federal government
  employed by, serving with, or accompanying the armed forces of the
  United States, if assigned to a foreign country or a vessel or unit
  of the armed forces of the United States;
               (2)  has a disability that prohibits travel or is
  quarantined to protect the borrower's health or the health of
  others, as verified by a written letter from a physician; or
               (3)  is unable to travel to the closing because the
  borrower is incarcerated or under house arrest.
         (b)  In lieu of closing a home equity loan in person at the
  office of the lender, an attorney, or a title company, a borrower
  described by Subsection (a) may close the loan:
               (1)  from a remote location using remote online
  notarization; or
               (2)  through an agent who:
                     (A)  is acting under a durable power of attorney
  that expressly grants the agent the authority to engage in a home
  equity loan transaction on behalf of the borrower, regardless of
  where the borrower signed the power of attorney; and
                     (B)  appears in person for the closing at the
  office of the lender, attorney, or title company on behalf of the
  borrower.
         SECTION 3.  Section 751.203(b), Estates Code, is amended to
  read as follows:
         (b)  A certification described by Subsection (a) may be in
  the following form:
  CERTIFICATION OF DURABLE POWER OF ATTORNEY BY AGENT
         I, ___________ (agent), certify under penalty of perjury
  that:
         1.  I am the agent named in the power of attorney validly
  executed by ___________ (principal) ("principal") on ____________
  (date), and the power of attorney is now in full force and effect.
         2.  The principal is not deceased and is presently domiciled
  in ___________ (city and state/territory or foreign country).
         3.  To the best of my knowledge after diligent search and
  inquiry:
               a.  The power of attorney has not been revoked by the
  principal or suspended or terminated by the occurrence of any
  event, whether or not referenced in the power of attorney;
               b.  At the time the power of attorney was executed, the
  principal was mentally competent to transact legal matters and was
  not acting under the undue influence of any other person;
               c.  A permanent guardian of the estate of the principal
  has not qualified to serve in that capacity;
               d.  My powers under the power of attorney have not been
  suspended by a court in a temporary guardianship or other
  proceeding;
               e.  If I am (or was) the principal's spouse, my marriage
  to the principal has not been dissolved by court decree of divorce
  or annulment or declared void by a court, or the power of attorney
  provides specifically that my appointment as the agent for the
  principal does not terminate if my marriage to the principal has
  been dissolved by court decree of divorce or annulment or declared
  void by a court;
               f.  No proceeding has been commenced for a temporary or
  permanent guardianship of the person or estate, or both, of the
  principal; and
               g.  The exercise of my authority is not prohibited by
  another agreement or instrument.
         4.  If under its terms the power of attorney becomes
  effective on the disability or incapacity of the principal or at a
  future time or on the occurrence of a contingency, the principal now
  has a disability or is incapacitated or the specified future time or
  contingency has occurred.
         5.  I am acting within the scope of my authority under the
  power of attorney, and my authority has not been altered or
  terminated.
         6.  If applicable, I am the successor to ___________
  (predecessor agent), who has resigned, died, or become
  incapacitated, is not qualified to serve or has declined to serve as
  agent, or is otherwise unable to act.  There are no unsatisfied
  conditions remaining under the power of attorney that preclude my
  acting as successor agent.
         7.  I agree not to:
               a.  Exercise any powers granted by the power of
  attorney if I attain knowledge that the power of attorney has been
  revoked, suspended, or terminated; or
               b.  Exercise any specific powers that have been
  revoked, suspended, or terminated.
         8.  A true and correct copy of the power of attorney is
  attached to this document.
         9.  If applicable and if used in connection with an extension
  of credit under Section 50(a)(6), Article XVI, Texas Constitution,
  the power of attorney was executed in the office of the lender, the
  office of a title company, or the law office of
  ____________________.
  Date: __________, 20__.
         __________________________________ (signature of agent)
         SECTION 4.  Section 752.051, Estates Code, is amended to
  read as follows:
         Sec. 752.051.  FORM. The following form is known as a
  "statutory durable power of attorney":
  STATUTORY DURABLE POWER OF ATTORNEY
  NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING.
  THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, SUBTITLE P,
  TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE POWERS,
  OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT AUTHORIZE
  ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS FOR YOU. YOU
  MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO DO SO. IF YOU
  WANT YOUR AGENT TO HAVE THE AUTHORITY TO SIGN HOME EQUITY LOAN
  DOCUMENTS ON YOUR BEHALF, THIS POWER OF ATTORNEY MUST BE SIGNED BY
  YOU AT THE OFFICE OF THE LENDER, AN ATTORNEY AT LAW, OR A TITLE
  COMPANY, UNLESS YOU QUALIFY FOR AN EXCEPTION UNDER SECTION 343.302,
  FINANCE CODE.
         You should select someone you trust to serve as your agent.
  Unless you specify otherwise, generally the agent's authority will
  continue until:
               (1)  you die or revoke the power of attorney;
               (2)  your agent resigns, is removed by court order, or
  is unable to act for you; or
               (3)  a guardian is appointed for your estate.
         I, __________ (insert your name and address), appoint
  __________ (insert the name and address of the person appointed) as
  my agent to act for me in any lawful way with respect to all of the
  following powers that I have initialed below. (YOU MAY APPOINT
  CO-AGENTS. UNLESS YOU PROVIDE OTHERWISE, CO-AGENTS MAY ACT
  INDEPENDENTLY.)
         TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN
  FRONT OF (O) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS
  LISTED IN (A) THROUGH (N).
         TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE
  POWER YOU ARE GRANTING.
         TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE
  POWER. YOU MAY, BUT DO NOT NEED TO, CROSS OUT EACH POWER WITHHELD.
         ____ (A) Real property transactions, including home equity
  loan transactions;
         ____ (B) Tangible personal property transactions;
         ____ (C) Stock and bond transactions;
         ____ (D) Commodity and option transactions;
         ____ (E) Banking and other financial institution
  transactions;
         ____ (F) Business operating transactions;
         ____ (G) Insurance and annuity transactions;
         ____ (H) Estate, trust, and other beneficiary transactions;
         ____ (I) Claims and litigation;
         ____ (J) Personal and family maintenance;
         ____ (K) Benefits from social security, Medicare, Medicaid,
  or other governmental programs or civil or military service;
         ____ (L) Retirement plan transactions;
         ____ (M) Tax matters;
         ____ (N) Digital assets and the content of an electronic
  communication;
         ____ (O) ALL OF THE POWERS LISTED IN (A) THROUGH (N). YOU DO
  NOT HAVE TO INITIAL THE LINE IN FRONT OF ANY OTHER POWER IF YOU
  INITIAL LINE (O).
  SPECIAL INSTRUCTIONS:
         Special instructions applicable to agent compensation
  (initial in front of one of the following sentences to have it
  apply; if no selection is made, each agent will be entitled to
  compensation that is reasonable under the circumstances):
         ____ My agent is entitled to reimbursement of reasonable
  expenses incurred on my behalf and to compensation that is
  reasonable under the circumstances.
         ____ My agent is entitled to reimbursement of reasonable
  expenses incurred on my behalf but shall receive no compensation
  for serving as my agent.
         Special instructions applicable to co-agents (if you have
  appointed co-agents to act, initial in front of one of the following
  sentences to have it apply; if no selection is made, each agent will
  be entitled to act independently):
         ____ Each of my co-agents may act independently for me.
         ____ My co-agents may act for me only if the co-agents act
  jointly.
         ____ My co-agents may act for me only if a majority of the
  co-agents act jointly.
         Special instructions applicable to gifts (initial in front of
  the following sentence to have it apply):
  ____ I grant my agent the power to apply my property to make gifts
  outright to or for the benefit of a person, including by the
  exercise of a presently exercisable general power of appointment
  held by me, except that the amount of a gift to an individual may not
  exceed the amount of annual exclusions allowed from the federal
  gift tax for the calendar year of the gift.
         ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
  LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
  ________________________________________________________________
  ________________________________________________________________
  ________________________________________________________________
  ________________________________________________________________
  ________________________________________________________________
  ________________________________________________________________
  ________________________________________________________________
  ________________________________________________________________
  ________________________________________________________________
         UNLESS YOU DIRECT OTHERWISE BELOW, THIS POWER OF ATTORNEY IS
  EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT TERMINATES.
         CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
  ALTERNATIVE NOT CHOSEN:
         (A)  This power of attorney is not affected by my subsequent
  disability or incapacity.
         (B)  This power of attorney becomes effective upon my
  disability or incapacity.
         YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY
  IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
         IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT
  YOU CHOSE ALTERNATIVE (A).
         If Alternative (B) is chosen and a definition of my
  disability or incapacity is not contained in this power of
  attorney, I shall be considered disabled or incapacitated for
  purposes of this power of attorney if a physician certifies in
  writing at a date later than the date this power of attorney is
  executed that, based on the physician's medical examination of me,
  I am mentally incapable of managing my financial affairs. I
  authorize the physician who examines me for this purpose to
  disclose my physical or mental condition to another person for
  purposes of this power of attorney. A third party who accepts this
  power of attorney is fully protected from any action taken under
  this power of attorney that is based on the determination made by a
  physician of my disability or incapacity.
         I agree that any third party who receives a copy of this
  document may act under it. Termination of this durable power of
  attorney is not effective as to a third party until the third party
  has actual knowledge of the termination. I agree to indemnify the
  third party for any claims that arise against the third party
  because of reliance on this power of attorney. The meaning and
  effect of this durable power of attorney is determined by Texas law.
         If any agent named by me dies, becomes incapacitated,
  resigns, refuses to act, or is removed by court order, or if my
  marriage to an agent named by me is dissolved by a court decree of
  divorce or annulment or is declared void by a court (unless I
  provided in this document that the dissolution or declaration does
  not terminate the agent's authority to act under this power of
  attorney), I name the following (each to act alone and
  successively, in the order named) as successor(s) to that agent:
  __________.
         Signed this ______ day of __________, _____________
  ___________________________
  (your signature)
  State of _______________________
  County of ______________________
  This document was acknowledged before me on ____________(date) by
  ________________________
  (name of principal)
  ____________________________
  (signature of notarial officer)
  (Seal, if any, of notary) ______________________________________
                                       (printed name)
  My commission expires: __________
  IMPORTANT INFORMATION FOR AGENT
  Agent's Duties
         When you accept the authority granted under this power of
  attorney, you establish a "fiduciary" relationship with the
  principal. This is a special legal relationship that imposes on you
  legal duties that continue until you resign or the power of attorney
  is terminated, suspended, or revoked by the principal or by
  operation of law. A fiduciary duty generally includes the duty to:
               (1)  act in good faith;
               (2)  do nothing beyond the authority granted in this
  power of attorney;
               (3)  act loyally for the principal's benefit;
               (4)  avoid conflicts that would impair your ability to
  act in the principal's best interest; and
               (5)  disclose your identity as an agent when you act for
  the principal by writing or printing the name of the principal and
  signing your own name as "agent" in the following manner:
         (Principal's Name) by (Your Signature) as Agent
         In addition, the Durable Power of Attorney Act (Subtitle P,
  Title 2, Estates Code) requires you to:
               (1)  maintain records of each action taken or decision
  made on behalf of the principal;
               (2)  maintain all records until delivered to the
  principal, released by the principal, or discharged by a court; and
               (3)  if requested by the principal, provide an
  accounting to the principal that, unless otherwise directed by the
  principal or otherwise provided in the Special Instructions, must
  include:
                     (A)  the property belonging to the principal that
  has come to your knowledge or into your possession;
                     (B)  each action taken or decision made by you as
  agent;
                     (C)  a complete account of receipts,
  disbursements, and other actions of you as agent that includes the
  source and nature of each receipt, disbursement, or action, with
  receipts of principal and income shown separately;
                     (D)  a listing of all property over which you have
  exercised control that includes an adequate description of each
  asset and the asset's current value, if known to you;
                     (E)  the cash balance on hand and the name and
  location of the depository at which the cash balance is kept;
                     (F)  each known liability;
                     (G)  any other information and facts known to you
  as necessary for a full and definite understanding of the exact
  condition of the property belonging to the principal; and
                     (H)  all documentation regarding the principal's
  property.
  Termination of Agent's Authority
         You must stop acting on behalf of the principal if you learn
  of any event that terminates or suspends this power of attorney or
  your authority under this power of attorney. An event that
  terminates this power of attorney or your authority to act under
  this power of attorney includes:
               (1)  the principal's death;
               (2)  the principal's revocation of this power of
  attorney or your authority;
               (3)  the occurrence of a termination event stated in
  this power of attorney;
               (4)  if you are married to the principal, the
  dissolution of your marriage by a court decree of divorce or
  annulment or declaration that your marriage is void, unless
  otherwise provided in this power of attorney;
               (5)  the appointment and qualification of a permanent
  guardian of the principal's estate unless a court order provides
  otherwise; or
               (6)  if ordered by a court, your removal as agent
  (attorney in fact) under this power of attorney. An event that
  suspends this power of attorney or your authority to act under this
  power of attorney is the appointment and qualification of a
  temporary guardian unless a court order provides otherwise.
  Liability of Agent
         The authority granted to you under this power of attorney is
  specified in the Durable Power of Attorney Act (Subtitle P, Title 2,
  Estates Code). If you violate the Durable Power of Attorney Act or
  act beyond the authority granted, you may be liable for any damages
  caused by the violation or subject to prosecution for
  misapplication of property by a fiduciary under Chapter 32 of the
  Texas Penal Code.
         THE AGENT, BY ACCEPTING OR ACTING UNDER THE APPOINTMENT,
  ASSUMES THE FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT.
         SECTION 5.  The changes in law made by this Act apply only to
  a durable power of attorney executed on or after the effective date
  of this Act. A durable power of attorney executed before the
  effective date of this Act is governed by the law in effect on the
  date the power of attorney was executed, and that law continues in
  effect for that purpose.
         SECTION 6.  This Act takes effect January 1, 2024, but only
  if the constitutional amendment proposed by the 88th Legislature,
  Regular Session, 2023, authorizing the legislature to provide for
  exceptions to the requirement that a home equity loan be closed only
  at the office of the lender, an attorney at law, or a title company
  is approved by the voters. If that proposed constitutional
  amendment is not approved by the voters, this Act has no effect.